Deputy First Minister Kate Forbes has been urged to extend the terms of reference of an inquiry into the death of a man in police custody nine years ago.
Aamer Anwar, who represents the family of Sheku Bayoh, said the move is necessary so the inquiry can fulfil its purpose.
Mr Bayoh, 31, died in 2015 after being arrested in Kirkcaldy, Fife.
The Crown Office decided not to take legal action against the police involved following an investigation.
The ongoing public inquiry, before Lord Bracadale, is looking into the circumstances of Mr Bayoh’s death, including whether race was a factor in the actions of the police.
Mr Anwar claimed on Thursday that the Police Investigations and Review Commissioner (Pirc) and the Crown Office “failed” to carry out their respective roles in the days following Mr Bayoh’s death.
It is now clear after two years of evidence that the inquiry cannot complete its task without an extension of the terms of reference
He said the family are waiting for Ms Forbes to extend the terms of reference to include how the Crown made its decisions during the prosecution process, and claimed the inquiry is not fit for purpose without being able to do so.
The lawyer said: “For over nine years the family have campaigned for the truth and justice, including the setting up of the public inquiry.
“It is now clear after two years of evidence that the inquiry cannot complete its task without an extension of the terms of reference.”
He said the Bayoh family met with Ms Forbes during the summer, and contacted her on four occasions from September to November to detail their request for the terms of reference to be extended.
He told reporters there had been a “fundamental failure” by the Crown Office to understand factual evidence, the provision of “flawed and biased” instructions to witnesses, and a “total failure” to examine the issue of race.
Mr Anwar said: “We consider these will be integral factors to the decision not to prosecute and so the only way of determining whether that decision was flawed would be to allow the public inquiry to examine it.
“Had the Crown listened to our repeated submissions in 2015-2019, there would have not been the need for a public inquiry and the family believe they should have been dealing with a criminal prosecution.
“The statute makes it clear that the (inquiry) chair is the person best placed to answer that question in an informed and impartial way.
“Final submissions were due to take place this week, however due to the delay in the Deputy First Minister making a decision, that timetable has been suspended.
“To be blunt, the job of the inquiry is not fulfilled without the terms of reference being extended – why would the Crown Office wish a spotlight shone on their own failures?
“Why would the Scottish Police Federation or Police Scotland wish to assist the public inquiry in lifting the veil, which ultimately could lead to the possibility of their clients being prosecuted?”
Mr Anwar concluded by saying the Bayoh family deserve answers, adding: “Unanswered questions do not go away, they fester and they grow and act against the public interest.”
A spokeswoman for the inquiry said: “As Lord Bracadale has stated throughout, the families of Sheku Bayoh are at the heart of the inquiry.
“An important part of this commitment is providing opportunities for them to meet the chair from time to time. Lord Bracadale held a private meeting with members of the family today.
“The families of Mr Bayoh sought an extension to the terms of reference. The chair did not request an extension. The Deputy First Minister consulted the chair in line with the statutory obligation to do so and he responded on November 18. The decision on whether to extend the terms of reference is a matter for Scottish ministers.”
A spokesperson for the Crown Office and Procurator Fiscal Service said: “The Crown examined the death of Sheku Bayoh in great detail and has reserved its right to prosecute should evidence in support of that become available.
“The consequences of changes to the terms of reference have potential to be far reaching, not just for this inquiry but for any case involving a decision not to prosecute.
“The Crown continues to be supportive of the inquiry, and respectful of the position of the Bayoh family, and is carefully considering the requests made. The Crown’s position will be shared through appropriate channels as soon as is possible.”
A Scottish Government spokesperson said: “Following the family’s request to extend the inquiry’s terms of reference, the Scottish Government started the process of gathering views, including consulting with the chair of the inquiry.
“All relevant matters will be given full and careful consideration. This work is ongoing and a decision will be made as soon as possible.”
Pirc has been contacted for comment.
